Jury Deliberations:
What Goes on Behind Closed Doors

For most lawyers, the opportunity to observe a jury deliberate is a rare occurrence. Few trial attorneys actually make it onto jury panels. For the vast majority, trying a case is like entering information into a black hole, and awaiting the results to pop out without ever understanding what happened behind those closed doors. What influenced jurors? How did they go about obtaining their verdict

After observing hundreds and hundreds of mock juries deliberate, and interviewing dozens of actual jurors in post-trial sessions, we have gained many insights into the process that generally takes place inside the jury deliberation room. There is consistency in how jurors approach their task and what they do.

The jury’s first task upon entering the jury deliberation room is to select a foreperson. Generally, one individual in the group will pose the question, "Who’s done this before?" Those with prior jury experience are immediately in the pool of potential forepersons. Next, the group evaluates the leadership potential of these individuals. During voir dire, whether oral voir dire or on a jury questionnaire, counsel should inquire as to an individual’s past leadership experience. Exploring leadership roles in civic organizations, and at work is an important tool for identifying the individuals who will have the most influence.

Statistically, a foreperson is generally likely to be male, over the age of 40, with two plus years of college, and some management experience. When a female is foreperson, she is generally likely to be in her mid-thirties, with four years of college and single. Of course, these "statistical characteristics" must be understood in light of the fact that each panel is unique and represents a distinct entity. An individual who is a leader in one group of 12, may be utterly silent in a different group of 12. For example, a housewife who meets weekly with other parents of school children to plan fund raising activities, may be a leader or an active participant in that group. This same individual, when in a group of 12 community residents with differing interests, education levels and experiences, may take less of a leadership role. Therefore, in examining the "leadership" of any perspective juror, it must be done in the context of the other jurors. Trial attorneys should remain alert during their voir dire, to individuals with strong leadership characteristics and prior jury experience

In looking at the panel as a whole, the relative participation of each group member will fall into three broad categories. Generally, on any panel of 12 individuals, social science research has revealed that there tends to be three or four "persuaders" in the group. These individuals make over 50% of the affirmative statements during the deliberations. They tend to be the ones who build coalitions and are responsible for most of the introduction of new issues for the jury’s consideration. Thus, although there might be "one foreperson" the focal discussions are really devided amongst the three or four persuaders. In fact, when a foreperson is ineffective in handling the organization of the deliberations, a secondary foreperson tends to emerge informally and take on the role of the foreperson, without ever actually being identified as such. The next group of individuals in the jury deliberation room are the "participants." These six to eight individuals tend to be active and participate in the discussions, but they usually have opinions in reaction to statements made by the leaders. They tend to be the joiners, and will follow and support other members, but generally don’t tend to build coalitions themselves. Finally, there is a group of three or four individuals known as the "non-participants." These individuals are uninterested in being on the jury, and/or are uncomfortable speaking up. Their primary concerns are, "How long is this going to take?," and "If you need another vote to get a majority, you can count me in." Thus, an awareness of the relative role of each juror may be helpful for counsel in tailoring closings and narrowing the size of the target audience that must be deeply engaged in counsel’s argument.

After the foreperson has been selected, the group tends to orient to the task. In most groups, jurors follow the judge’s admonition to avoid taking straw polls or immediately voting on the issues upon entering the deliberation room. One juror may suggest such a thing, but that tends to be quickly overruled by other group members who prefer to spend some time discussing the issues "in general." The first phase of the jury deliberations is generally very animated. Jurors have been unable to discuss the issue for days or weeks. Suddenly they are given the liberty to offer opinions and comments. Many side conversations erupt during this initial phase, and the expression of a great deal of pent up frustration emerges. Jurors will complain about the pace of the case, different characteristics of the attorneys, the tedium of the testimony of various individuals, etc.

Once this initial phase has passed, jurors tend to reorient to the issues and often will start with a complete review of the verdict form, although jurors won’t necessarily start with question number one. Rarely are words like "preponderance of the evidence," or "guilty beyond a reasonable doubt" uttered during jury deliberations. Instead we hear phrases like, "Well, do you think the plaintiff is entitled to anything?," "Well, does it seem like this is a bad product?" "Well, what’s your inclination? Are we going with the plaintiff or the defendant?" Observers rarely hear a juror say, "Do you feel the evidence presented establishes the liability of the defendant by a preponderance of the evidence?" Attorneys often speak to one another with references to the burden of proof, and whether there is sufficient evidence to "prove up a point." In particular, when there are different standards of proof required (e.g., clear and convincing evidence), attorneys feel more anxious over whether they will reach this "threshold" with jurors. As a matter of course, jurors rarely make distinctions along these lines. Their evaluations are from a perspective of what is "fair" and what is "right," or how the case "ought to come out." They do not weigh evidence against some legalistic scale of "clear and convincing evidence" versus "preponderance of the evidence."

Jurors generally conduct a round table discussion of the issues, asking each individual to offer his or her opinion and analysis of the case. These are generally very productive discussions, and the orderly nature tends to yield a wealth of information for the jury. I am always amazed at the "collective intelligence" of the jury. Often, one juror will make a totally inaccurate statement, recalling an issue erroneously. More often than not, the group will correct the individual. Two or three other individuals will report that they heard it differently, and the individual who spoke incorrectly, backs down. This is the reason that groups of 12 are far more likely to reach the "correct" conclusion in a trial, rather than juries of six. Smaller groups are more likely to be led, and sometimes led astray, by the power or persuasiveness of a single personality. Such an individual, with only five others in the group, can occasionally drive a verdict. In a group of 12, especially when the verdict does not have to be unanimous, it is less likely that a sole individual can exert a disproportionate influence.

It is interesting to note that jurors are very willing to interpret the evidence. Rather than accepting the conclusions presented by witnesses, jurors generally feel they have sufficient expertise to be able to judge the issues themselves. This is especially true when "experts" emerge on the jury panel. These tend to be individuals who have some experience, however remote, with the issues at hand, and therefore assert some unusual authority in the jury deliberation. For example, on many breach of contract cases we have seen jurors with experience signing a sales contract to purchase their home use this as the basis for their "expertise" on commercial construction contracts. Attorneys need to be on the lookout during jury selection for background experiences among jurors that may remotely touch upon the issues in the case. If it is a product defect case, it is important to find out if jurors have ever asserted any complaints to a manufacturer, whether they have ever returned a product to a store for a refund, and certainly whether they have ever been exposed to any type of dangerous situation they thought could have been the fault of a product. Counsel needs to know who the potential "experts" in the deliberation room might be. Over and over, we see jurors discount the conclusions of the experts by saying that each side hired their own gun. They do, however, take into account what the experts say. Therefore, whether your expert has better credentials than an opposing expert may not be as important as the expert’s ability to communicate effectively. The expert who can actually teach the jurors the issues and make a technical case understandable to lay individuals, will be the one most mimicked in the jury deliberation room. In fact, if an expert can use analogies that fit with jurors’ everyday experiences to explain theories of liability, he or she is likely to be quoted often in the jury deliberation room. Unfortunately, it is not necessarily the most knowledgeable expert who is the most persuasive. Rather, it is the expert who can create the most comprehensible sound bites for the jury to embrace.

There is a great deal of compromising in the jury deliberation room. Often, if there are a few individuals who strongly opposed liability, but they are overruled by nine of their colleagues with respect to liability, their impact will be felt on the damages phase. Those who voted for liability will make some "accommodation" to those who voted against it during the damages discussion. Essentially, the negative impact of the votes on liability are accounted for in damages.

It is profoundly refreshing to watch juries deliberate. They take their task very seriously. The truly search to do the "right thing," and in my experience, most of the time, their verdicts make profound sense in light of the evidence.

So, what should counsel do in case preparation in light of what we know about jury deliberations? It is important that the attorney make decisions about peremptory challenges taking into account the "potential leadership and/or expertise" of prospective jurors. Secondly, you need to specifically reiterate the testimony and important points for your side, rather than calling upon jurors to "remember what Dr. Smith said?" It is your responsibility to educate the jurors and to equip them with the tools to make a decision favorable to your case. Don’t simply invite them to "review the evidence." Review it for them. Make their job easier. The better equipped they are to articulate your position, the more likely they will have influence upon other jurors.

There is a method to the seeming madness behind closed doors. Even though, as advocates, we may be disappointed in a particular jury verdict, upon review of the jury deliberations, either through post-trial interviews or through mock jury studies, one can generally retrace the jury’s rationale and understand their verdict in light of the evidence that they examined.